Ann Harris vs. Mary Josephine Harris, et. al., 6 G. & J. 111

Dorsey, J., delivered the opinion of the court. We see no ground for reversing the decree of the Chancellor in this case. If required to pass a final decree therein, he could not have done otherwise than dismiss the complainant’s bill. The only evidence that a sale of the lands in question, would have been “for the benefit and advantage, both of the infants and other persons or persons concerned,” (without which being made to appear to him, he possessed no power to decree a sale,) was the admission in the answer of the infant defendants.

Such admission is not binding upon these infants, and before the Chancellor could pass the decree prayed for, he must be satisfied of the truth of the material allegations in the bill, by other means than the answer of the infants. We concur with the solicitor of the appellant in the opinion, that the executory devises to the infant defendants, form no obstacle to the decree sought at the hands of the Chancellor.

The 12th sec. of the act of Assembly of 1785, ch. 72, authorises such a decree, whenever an infant has “a joint interest, or interest in common with any other person or persons, in equal or unequal proportions, in any lands, tenements, or hereditaments.

All parties in interest are before the court, the infant defendants being the persons entitled under the executory devises; and the Chancery court has full power to carry into effect the intention of the testator, by making such a disposition or investment of that portion of the proceeds of sale affected by the executory devises, as will preserve its subjection to the contingencies imposed on it by the will.

It appearing to us, that the substantial merits of the case will not be determined by affirming the decree of the Chancellor, and that the purposes of justice will be advanced by permitting further proceedings therein, and further testimony to be taken, in pursuance of the 6th sec. of the act of December session, 1832, entitled, “A supplement to the act, entitled

an act, to define and enlarge the powers of courts of equity,” the cause will be remanded to the court of Chancery. REMANDED TO THE COURT OF CHANCERY.